John F. Waldo, Portland, Oregon, for Amici Curiae Washington State Communication Access Project, Oregon Communication Access Project, Association of Late Deafened Adults (ALDA), Aloha State (Hawaii) Association of the Deaf, Arizona Association of the Deaf, California Association of the Deaf, Nevada Association of the Deaf, Idaho Association of the Deaf, and Oregon Association of the Deaf.

Howard A. Rosenblum and Andrew S. Phillips, National Association of the Deaf, Silver Spring, Maryland; Blake E. Reid and Angela J. Campbell, Institute for Public Representation, Georgetown Law, Washington, D.C., for Amici Curiae Telecommunications for the Deaf and Hard of Hearing, Inc., National Association of the Deaf, and the Hearing Loss Association of America.

The panel vacated the district court's order denying CNN's motion brought under California's anti-SLAPP statute, seeking to dismiss a lawsuit that sought to secure equal access for the hearing-impaired by compelling CNN to caption videos posted on its website.

California's anti-SLAPP statute provides for the early dismissal of meritless lawsuits arising from a defendant's conduct in furtherance of its free speech rights. The panel held that plaintiffs' lawsuit targeted conduct in furtherance of CNN's free speech rights and fell within the scope of the anti-SLAPP statute. The panel further held that plaintiffs failed to establish a probability of prevailing on its claims under California's Unruh Civil Rights Act because plaintiffs had not shown intentional discrimination based on disability. The panel deferred decision on plaintiffs' claims under California's Disabled Persons Act pending further guidance from the California Supreme Court. The panel also held that at this juncture, none of CNN's constitutional challenges posed a barrier to plaintiffs' pursuit of its Disabled Persons Act claims.

OPINION

McKEOWN, Circuit Judge

This appeal—which tests the boundaries of multiple state laws and reveals tensions between California's antidiscrimination law, on one hand, and its anti-SLAPP statute, on the other—boils down to two central questions: Does California's anti-SLAPP statute, Cal. Civ. Proc. Code §§ 425.16 et seq., which permits a defendant to pursue early dismissal of meritless lawsuits arising from conduct by the defendant in furtherance of the right of petition or free speech, apply to a lawsuit seeking to secure equal access for the hearing-impaired by compelling Cable News Network, Inc. ("CNN") to caption videos posted on its web site? And, if so, has the Greater Los Angeles Agency on Deafness, Inc. ("GLAAD") discharged its burden to show a probability of prevailing on the merits of its claims under California's Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq. ("Unruh Act"), and the California Disabled Persons Act, Cal. Civ. Code §§ 54 et seq. ("DPA")?

The magistrate judge answered no to the first question, declined to reach the second, and denied CNN's anti-SLAPP motion. CNN timely appealed. Consistent with the California legislature's express command to construe the anti-SLAPP statute broadly and our recent precedent, we hold that GLAAD's action targets conduct in furtherance of CNN's free speech rights and falls within the scope of the anti-SLAPP statute. We also conclude that GLAAD has failed to establish a probability of prevailing on its Unruh Act claims. The final question, whether the DPA applies to websites, is an important question of California law and raises an issue of significant public concern. We defer decision on GLAAD's DPA claims pending further guidance from the California Supreme Court. In a companion order published concurrently with this opinion, we certify to the California Supreme Court this remaining dispositive question of state law.

Background

I. Statutory and Regulatory Framework for Captioning

Captions in media broadcasts come in various shapes and sizes. They can identify content, speakers, sound effects, music, and emotions and may be either open or closed. "Closed" captions, unlike their "open" counterparts, are activated by the viewer and can be turned on and off. Closed Captioning of Video Programming, 23 FCC Rcd. 16674, 16675 (2008) (declaratory ruling, order, and notice of proposed rulemaking). In the online context, closed captioning is defined as "[t]he visual display of the audio portion of video programming."[1] Closed Captioning of Video Programming Delivered Using Internet Protocol, 47 C.F.R. § 79.4(a)(6) (2012). Such closed captioning—which GLAAD seeks in its action—"provides access to individuals who are deaf or hard of hearing." Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications & Video Accessibility Act of 2010, 77 Fed. Reg. 19480-01, 19480 (Mar. 30, 2012) (to be codified at 47 C.F.R. pts. 15, 79) (final rule).

In 2010, in response to the growing presence of video programming on the Internet, Congress enacted the Twenty-First Century Communications and Video Accessibility Act ("CVAA"), Pub. L. No. 111-260, 124 Stat. 2751 (2010) (codified at 47 U.S.C. § 613). The CVAA amended the 1996 Act and directed the FCC to revise its regulations to require closed captioning of certain online video programming. See 47 U.S.C. § 613(c)(2). In January 2012, during the pendency of this appeal, the FCC promulgated its online captioning rules, which took effect on March 30, 2012. See Closed Captioning of Internet Protocol-Delivered Video Programming, 77 Fed. Reg. at 19480–81. The FCC's 2012 captioning rules require closed captioning of "full-length video programming delivered using Internet protocol . . . if the programming is published or exhibited on television in the United States with captions." 47 C.F.R. § 79.4(b). Under the 2012 captioning rules, online video clips—defined as "[e]xcerpts of full-length video programming, " id. § 79.4(a)(12)—are excluded from the online captioning requirement, see id. §§ 79.4(a)(2), (b). The 1996 Act, as amended by the CVAA, and the FCC's 2012 captioning rules do not authorize a private right of action to enforce alleged violations of the online captioning requirement and instead provide that the FCC "shall have exclusive jurisdiction with respect to any complaint" alleging such violations. 47 U.S.C. § 613(j); 47 C.F.R. § 79.4(f).

II. GLAAD's Lawsuit

CNN is a wholly owned subsidiary of Turner Broadcasting System, Inc., which "is ultimately wholly owned by Time Warner Inc." CNN operates CNN.com, a publicly accessible web site containing online news videos. Most of these online videos are short video clips that excerpt programming previously broadcasted on television by CNN; some of the videos are shown exclusively on CNN.com. Approximately 100 to 120 video clips are posted on CNN.com every day, and the site features a searchable web archive of thousands of news videos. Although text articles accompany some of these online videos, none of them had closed captions at the time GLAAD brought this action.

In December 2010, GLAAD requested that Time Warner Inc. ("Time Warner") caption all of the videos on its news web sites, including CNN.com, to provide hearing-impaired visitors full access to the online videos. CNN responded that it offered a number of text-based services and explained that CNN would be "ready to provide whatever web access" then-pending federal rulemaking ...

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